Exhibit 5(b)
Distribution Agreement
Agreement dated as of September 29, 2006 between each of the investment
companies listed in Appendix A, as such Appendix may be amended from time to
time (each, a "Fund", and collectively, the "Funds"), severally and not jointly,
and BLACKROCK DISTRIBUTORS, INC., a Delaware corporation (the "Distributor").
WHEREAS, each Fund is an open-end management investment company and is so
registered under the Investment Company Act of 1940, as amended (the "1940
Act"); and
WHEREAS, the Directors and Trustees of certain Funds (referred to herein
as the "Directors") are authorized to establish separate series relating to
separate portfolios of securities, and the Directors have established and
designated multiple series of certain Funds; and
WHEREAS, each Fund desires to retain the Distributor as its distributor to
provide for the sale and distribution of each class and series of shares
("shares") of each of the Funds and the Distributor is willing to render such
services;
NOW, THEREFORE, in consideration of the premises and mutual covenants set
forth and intending to be legally bound, the parties hereto agree as follows:
1. Appointment of Distributor. Each Fund hereby appoints the Distributor
as a principal underwriter of each class and series of shares in each of the
Funds on the terms and for the period set forth in this Agreement. The
Distributor hereby accepts such appointment and agrees to render the services
and duties set forth in Section 3 below. In the event that a Fund establishes
additional classes or series other than as listed on Appendix A with respect to
which it desires to retain the Distributor to act as distributor hereunder, such
Fund shall notify the Distributor, whereupon such Appendix A shall be
supplemented (or amended) and such portfolio shall become a Fund hereunder (upon
written agreement of the Distributor) and shall be subject to the provisions of
this Agreement to the same extent as the Funds (except to the extent that said
provisions may be modified in writing by such Fund and Distributor at the time).
2. Delivery of Documents. Each Fund has furnished or will furnish the
Distributor with copies, properly certified or authenticated, of each of the
following documents and will deliver to it all future amendments and
supplements, if any:
a. The Fund's most recent amendment to its Registration Statement
under the Securities Act of 1933, as amended (the "1933 Act"), and the 1940 Act
on Form N-1A as filed with the Securities and Exchange Commission (the
"Commission"), relating to its shares (the Registration Statement, as presently
in effect and as amended or supplemented from time to time, is herein called the
"Registration Statement"); and
b. The Fund's most recent Prospectus and Statement of Additional
Information and all amendments and supplements thereto (each such Prospectus and
Statement of Additional Information and supplements thereto, as presently in
effect and as from time to time amended and supplemented, are herein called the
"Prospectus").
3. Services and Duties. The Distributor enters into the following
covenants with respect to its services and duties:
a. The Distributor agrees to sell, as agent, from time to time
during the term of this Agreement, shares upon the terms and at the current
offering price as described in the Prospectus. The Distributor will act only in
its own behalf as principal in making agreements with selected dealers. No
broker-dealer or other person which enters into a selling or servicing agreement
with the Distributor shall be authorized to act as agent for a Fund or any
series thereof in connection with the offering or sale of shares to the public
or otherwise. The Distributor shall use its best efforts to sell shares of each
class or series of each of the Funds but shall not be obligated to sell any
certain number of shares.
b. The Distributor shall prepare or review, provide advice with
respect to, and file with the federal and state agencies or other organizations
as required by federal, state, or other applicable laws and regulations, all
sales literature (advertisements, brochures and shareholder communications) for
each of the Funds and any class or series thereof.
c. In performing all of its services and duties as Distributor, the
Distributor will act in conformity with the Prospectus and resolutions and other
instructions of a Fund's Board of Directors and will comply with the
requirements of the 1933 Act, the Securities Exchange Act of 1934, the 1940 Act
and all other applicable federal or state law.
d. The Distributor will bear the cost of printing and distributing
any Prospectus (including any supplement thereto) to persons who are not
shareholders; provided, however, that the Distributor shall not be obligated to
bear the expenses incurred by a Fund in connection with the preparation and
printing of any amendment to any Registration Statement or Prospectus necessary
for the continued effective registration of the shares under the 1933 Act and
state securities laws and the distribution of any such document to existing
shareholders of a Fund.
e. Each Fund shall have the right to suspend the sale of shares at
any time in response to conditions in the securities markets or otherwise, and
to suspend the redemption of its shares at any time permitted by the 1940 Act or
the rules and regulations of the Commission ("Rules").
f. Each Fund reserves the right to reject any order for shares but
will not do so without reasonable cause.
4. Payments Relating to Distribution Plans. Payments by a Fund relating to
any distribution plan within the meaning of Rule 12b-1 under the 1940 Act (a
"Plan") adopted
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by such Fund's Board of Directors may be payable to the Distributor or its
assignees, all in accordance with the terms and conditions of such Plan.
5. Payments of Sales Charges. Any front-end sales charges or deferred
sales charges payable in connection with purchases of a Fund's shares shall be
payable to the Distributor or its assignees, all in accordance with such Fund's
Prospectus.
6. Forfeiture of Sales Charges. If any shares sold by the Distributor
under the terms of this Agreement are redeemed or repurchased by a Fund or by
the Distributor as agent or are tendered for redemption within seven business
days after the date of confirmation of the original purchase of said shares, the
Distributor shall forfeit the amount above the net asset value received by it in
respect of such shares, provided that the portion, if any, of such amount
re-allowed by the Distributor to broker-dealers or other persons shall be
repayable to a Fund only to the extent recovered by the Distributor from the
broker-dealer or other person concerned. The Distributor shall include in the
form of agreement with such broker-dealers and other persons a corresponding
provision for the forfeiture by them of their concession with respect to shares
sold by them or their principals and redeemed or repurchased by a Fund or by the
Distributor as agent (or tendered for redemption) within seven business days
after the date of confirmation of such initial purchases.
7. Limitations of Liability. The Distributor shall not be liable for any
error of judgment or mistake of law or for any loss suffered by a Fund in
connection with the matters to which this Agreement relates, except a loss
resulting from willful misfeasance, bad faith or gross negligence on its part in
the performance of its duties or from reckless disregard by it of its
obligations and duties under this Agreement. Notwithstanding anything in this
Agreement to the contrary, (i) the Distributor shall not be liable for any
losses or damages occurring directly or indirectly by reason of circumstances
beyond its reasonable control and (ii) the Distributor shall not be liable for
any consequential, special or indirect losses or damages (whether or not the
likelihood of such losses or damages was known by the Distributor). The
provisions of this Section 7 shall survive termination of this Agreement.
8. Proprietary and Confidential Information. The Distributor agrees on
behalf of itself and its employees to treat confidentially and as proprietary
information of each Fund all records and other information relative to each Fund
and its series and prior, present or potential shareholders, and not to use such
records and information for any purpose other than performance of its
responsibilities and duties hereunder, except after prior notification to and
approval in writing by a Fund, which approval shall not be unreasonably
withheld. Notwithstanding the foregoing, records and information shall not be
subject to the foregoing obligations set forth in this Section 8 if they are
required to be disclosed by the Distributor pursuant to a requirement of a court
order, subpoena, governmental or regulatory agency or law (provided the
Distributor will provide the Company written notice of such requirement, to the
extent such notice is permitted). The provisions of this Section 8 shall survive
termination of this Agreement.
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9. Indemnification.
a. Each Fund, severally and not jointly, represents and warrants to
the Distributor that its Registration Statement and the Prospectus at all times
will in all material respects conform to the applicable requirements of the 1933
Act and the Rules and will not include any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading, except that no representation or warranty in this Section
9 shall apply to statements or omissions made in reliance upon and in conformity
with written information furnished to a Fund by or on behalf of the Distributor
or one of its affiliates expressly for use in the Registration Statement or
Prospectus.
b. Each Fund agrees, severally and not jointly, that it will
indemnify, defend and hold harmless the Distributor, its several officers, and
directors, and any person who controls the Distributor within the meaning of
Section 15 of the 1933 Act, from and against any losses, claims, damages or
liabilities, joint or several, to which the Distributor, its several officers,
and directors, and any person who controls the Distributor within the meaning of
Section 15 of the 1933 Act, may become subject under the 1933 Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) arise out of, or are based upon, any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus or are based upon information furnished
by or on behalf of a Fund filed in any state in order to qualify the shares
under the securities or blue sky laws thereof ("Blue Sky application") or arise
out of, or are based upon, the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse the Distributor, its several
officers, and directors, and any person who controls the Distributor within the
meaning of Section 15 of the 1933 Act, for any legal or other expenses
reasonably incurred by the Distributor, its several officers, and directors, and
any person who controls the Distributor within the meaning of Section 15 of the
1933 Act, in investigating, defending or preparing to defend any action,
proceeding or claim related thereto; provided, however, that a Fund shall not be
liable in any case to the extent that such loss, claim, damage or liability
arises out of, or is based upon, any untrue statement, alleged untrue statement,
or omission or alleged omission made in the Registration Statement, the
Prospectus or any Blue Sky application with respect to such Fund in reliance
upon and in conformity with written information furnished to a Fund by or on
behalf of the Distributor or one of its affiliates specifically for inclusion
therein or arising out of the failure of the Distributor to deliver a current
Prospectus.
c. Each Fund shall not indemnify any person pursuant to this Section
9 unless the court or other body before which the proceeding was brought has
rendered a final decision on the merits that such person was not liable by
reason of his or her willful misfeasance, bad faith or gross negligence in the
performance of his or her duties, or his or her reckless disregard of any
obligations and duties, under this Agreement ("disabling conduct") or, in the
absence of such a decision, a reasonable determination (based upon a review of
the facts) that such person was not liable by reason of disabling conduct has
been made by the vote of a majority of a quorum of the directors/trustees of
such Fund who are neither "interested parties"
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(as defined in the 0000 Xxx) nor parties to the proceeding, or by independent
legal counsel in a written opinion.
d. The Distributor will indemnify and hold harmless each Fund,
severally and not jointly, and its several officers and directors/trustees, and
any person who controls the Fund within the meaning of Section 15 of the 1933
Act, from and against any losses, claims, damages or liabilities, joint or
several, to which any of them may become subject under the 1933 Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) arise out of, or are based upon, any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement, the Prospectus or any Blue Sky application, or arise out
of, or are based upon, the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, which statement or omission was made in reliance upon
and in conformity with information furnished in writing to a Fund or any of its
several officers and directors/trustees by or on behalf of the Distributor or
one of its affiliates specifically for inclusion therein, and will reimburse a
Fund and its several officers, directors/trustees and such controlling persons
for any legal or other expenses reasonably incurred by any of them in
investigating, defending or preparing to defend any action, proceeding or claim
related thereto.
e. The obligations of each Fund under this Section 9 shall be the
several (and not the joint or joint and several) obligation of each Fund.
f. The provisions of this Section 9 shall survive termination of
this Agreement.
10. Duration and Termination. This Agreement shall become effective as of
the date first written above and, unless sooner terminated as provided herein,
shall continue until two years from the date first written above. Thereafter, if
not terminated, this Agreement shall continue automatically with respect to each
Fund for successive terms of one year, provided that such continuance is
specifically approved at least annually (a) by a vote of a majority of those
members of a Fund's Board of Directors who are not parties to this Agreement or
"interested persons" of any such party, cast in person at a meeting called for
the purpose of voting on such approval, and (b) by a Fund's Board of Directors
or by vote of a "majority of the outstanding voting securities" of a Fund;
provided, however, that this Agreement may be terminated by a Fund at any time,
without the payment of any penalty, by vote of a majority of the entire Board of
Directors of such Fund or by a vote of a "majority of the outstanding voting
securities" of a Fund on 60-days' written notice to the Distributor, or by the
Distributor at any time, without the payment of any penalty, on 90-days' written
notice to a Fund. This Agreement will automatically and immediately terminate in
the event of its "assignment." (As used in this Agreement, the terms "majority
of the outstanding voting securities," "interested person" and "assignment"
shall have the same meanings as such terms have in the 1940 Act.).
11. Amendment of this Agreement. No provision of this Agreement may be
changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by the party against which an enforcement of the change, waiver,
discharge or termination is sought.
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12. Notices. Notices of any kind to be given to a Fund hereunder by the
Distributor shall be in writing and shall be duly given if mailed or delivered
to a Fund at 000 Xxxxxxxx Xxxx Xxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000, Attention:
President, with a copy to Secretary, or at such other address or to such
individual as shall be so specified by a Fund to the Distributor. Notices of any
kind to be given to the Distributor hereunder by the Fund shall be in writing
and shall be duly given if mailed or delivered to BlackRock Distributors, Inc.,
000 Xxxxxxxx Xxxxxxx, Xxxxxxxxxx, XX 00000, Attention: President, or at such
other address or to such other individual as shall be so specified by the
Distributor to the Fund.
13. Rule 38-1. The Distributor will provide such information as a Fund
reasonably requests in order for each Fund to comply with its obligations
pursuant to Rule 38a-1 under the 1940 Act.
14. Miscellaneous.
a. The captions in this Agreement are included for convenience of
reference only and in no way define or delimit any of the provisions
hereof or otherwise affect their construction or effect. If any provision of
this Agreement shall be held or made invalid by a court decision, statute, rule
or otherwise, the remainder of this Agreement shall not be affected thereby.
This Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors. This Agreement shall be deemed
to be a contract made in Delaware and governed by Delaware law, without regard
to principles of conflicts of law.
b. Notwithstanding anything to the contrary contained in this
Agreement, the parties hereto acknowledge and agree that, as provided in the
Declaration of Trust establishing each Fund that is organized as a Massachusetts
business trust, which is on file in the office of the Secretary of the
Commonwealth of Massachusetts, this Agreement is executed by the trustees and/or
officers of the Fund, not individually but as such trustees and/or officers of
the Fund, and the obligations hereunder are not binding upon any of the
trustees, officers or shareholders individually, but bind only the estate of the
Fund.
c. Each Fund acknowledges that the Distributor may receive float
benefits and/or investment earnings in connection with maintaining certain
accounts required to provide services under this Agreement.
d. Notwithstanding any provision herein to the contrary, each party
hereto agrees that any Nonpublic Personal Information, as defined under Section
248.3(t) of Regulation S-P ("Regulation S-P"), promulgated under the
Xxxxx-Xxxxx-Xxxxxx Act (the "Act"), disclosed by a party hereunder is for the
specific purpose of permitting the other party to perform the services set forth
in this Agreement. Each party agrees that, with respect to such information, it
will comply with Regulation S-P and the Act and that it will not disclose any
Nonpublic Personal Information received in connection with this Agreement to any
other party, except to the extent as necessary to carry out the services set
forth in this Agreement or as otherwise permitted by Regulation S-P or the Act.
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e. To help the U.S. government fight the funding of terrorism and
money laundering activities, U.S. Federal law requires each financial
institution to obtain, verify, and record certain information that identifies
each person who initially opens an account with that financial institution on or
after October 1, 2003. Consistent with this requirement, the Distributor will
request (or already has requested) each Fund's name, address and taxpayer
identification number or other government-issued identification number. The
Distributor may also ask (and may have already asked) for additional identifying
information, and the Distributor may take steps (and may have already taken
steps) to verify the authenticity and accuracy of these data elements.
f. Each Fund hereby represents and warrants to the Distributor that
(i) the terms of this Agreement, (ii) the fees and expenses associated with this
Agreement, and (iii) any benefits accruing to the Distributor or to the adviser
or sponsor of a Fund in connection with this Agreement, including but not
limited to any fee waivers, conversion cost reimbursements, up front payments,
signing payments or periodic payments made or to be made by the Distributor to
such adviser or sponsor or any affiliate of a Fund relating to this Agreement
have been fully disclosed to each Fund's Board of Directors and that, if
required by applicable law, such Board of Directors has approved or will approve
the terms of this Agreement, any such fees and expenses, and any such benefits
15. Counterparts. This Agreement may be executed in counterparts, all of
which together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed by their officers designated below as of the day and year first above
written.
Each of the Investment Companies
Listed on Appendix A
By: _______________________________
Title: Vice President and Treasurer
BLACKROCK DISTRIBUTORS, INC.
By: _______________________________
Title:
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APPENDIX A
THIS APPENDIX A, dated as of September 29, 2006, is Appendix A to that
certain Distribution Agreement dated as of September 29, 2006 between BlackRock
Distributors, Inc. and each investment company listed below.
INVESTMENT COMPANIES
Xxxxxxx Xxxxx Retirement Reserves Money Fund of Xxxxxxx Xxxxx Retirement Series
Trust
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